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Bringing the Geulah Through Mekhirat Chametz by Daniel Z. Feldman

March 28, 2010 by  
Filed under Halakha, Holidays, New Posts

Mekhirat chametz sometimes gets a bad rap. The widespread practice of observant Jews selling their chametz to a non-Jew prior to Pesach, and thus avoiding the prohibitions of bal yeraeh and bal yematze while preserving the chametz for repossession after Pesach, is sometimes seen as a way of not having one’s cake and eating it too; an evasion that perhaps fulfills the technical imperative of the Torah directive (and perhaps not), yet seems to be artificial and contrived in nature.  The ambivalence toward this practice (as well as other “sale” approaches, which are subject to varying degrees of controversy) is reflected in the joke that is told about a rabbinic ban on smoking: the orthodox Jews aren’t worried, as they will simply sell their lungs to a non-Jew.

This conflicted attitude is played out in the halakhic literature. True, the Tosefta[1] does speak of a situation in which a Jew, finding himself stuck at sea as Pesach approaches, transfers ownership of his chametz to a non-Jewish fellow traveler, and reclaims it after the holiday.  However, the impression is one of an unplanned, non-ideal, and isolated incident; the current reality, where entire communities plan in advance to preserve their stocks of chametz through annually scheduled arrangements with their local rabbi, appears to be a significant expansion of the depicted scenario.

A more commonly heard complaint is that the sale seems like a joke: the chametz does not leave the original owner’s residence (something some poskim insisted should happen[2]); the purchaser does not appear interested in actually taking possession of the chametz;[3] rarely if ever does the seller have to open his doors and cabinets to the new owner of his food; and the chametz invariably reverts to its original ownership immediately after Pesach.  

Rabbenu Yerucham[4], commenting on the Tosefta’s ruling, asserts that one who utilizes this option should not engage in ha’aramah (evasion of the halakhah). The Beit Yosef[5] questions this requirement: the entire plan, appears to be a ha’aramah, and yet, it is permitted!

Persistent Controversy

Controversy over the sale has persisted over the generations, despite its increasing usage, and while some of the objections focused on the more problem-fraught method of a rabbi purchasing his congregants’ chametz in order to sell it to a non-Jew[6], it is clear that some great rabbinic authorities[7] objected even to the more prevalent current practice, where the rabbi does not purchase the chametz but rather acts as an agent to sell it to the purchaser.[8]

The Bekhor Shor[9] asserts that mekhirat chametz is indeed a ha’aramah, and for that reason is ineffective against a biblical prohibition of owning chametz. He assumes, however, that the chametz at hand is only subject to a rabbinical prohibition, because, as the Talmud[10] states in the context of bedikat chametz, the bitul of chametz is effective to negate the Torah prohibition.[11]

However, many achronim[12] challenged that premise, noting that the chametz that is negated is not the same chametz as that which is sold, and thus a biblical prohibition would still attach; as such, one who would utilize mekhirat chametz must be comfortable that it is effective on a Torah level.[13]

Indeed, there are many who have adopted a policy not to sell chametz gamur, presumably reflecting a lack of confidence in the sale’s efficacy together with the assumption that the chametz in question is not batel.[14]  Nonetheless, the acceptance of mekhirat chametz in all forms is widespread, with Jews purchasing chametz knowing in advance it will be sold, and some poskim even considering the question of whether it should be an obligation to sell one’s chametz as part of the appropriate safeguards for Pesach.[15]

In Defense of Mechirat Chametz

Perhaps an explanation can be offered for the embrace by so much of observant Jewry of the embattled mekhirat chametz. It would begin by considering the prohibitions of bal yeraeh and bal yematze that the sale is meant to address. The Ran[16] asserts that these prohibitions serve as a kind of “syag min haTorah[17]: in essence, the Torah is really primarily concerned that we should not eat chametz. However, if chametz is kept in one’s possession, there is a great risk that in a distracted moment, or in the course of a semi-awake midnight snack, one might prepare himself a meal of the normally-permitted chametz. To avoid this eventuality, all chametz must be removed from one’s possession.

By embracing mekhirat chametz, Klal Yisrael is declaring that there are two things that can prevent them from eating chametz: not having any, and the transgression of gezel. If the chametz is in one’s house, but is off-limits because of the prohibition of stealing, that is enough to keep the Jews away from its consumption. Therefore, it doesn’t matter whether or not the chametz will ever be picked up by its purchaser, or whether or not the sale will be reversed after Pesach. All that does matter is that during Pesach, the chametz legally belongs to another; that is enough to make sure it will be untouched. In other words, Klal Yisrael is willing to stake its “kareit” on its commitment to avoiding theft.

In this context, it is worth noting the words of the Semag[18] who states that the exile has gone on too long because of deficiencies in honesty and integrity in dealing with the nations of the world.  When that problem is present, redemption can not take place; it would be a chilul Hashem for G-d to redeem a nation that is perceived as immoral. As such, perhaps the practice of mekhirat chametz is a conscious decision, at a time when we focus on geulah, to enter into a monetary relationship with a non-Jewish person, and to honor the integrity of that relationship with one’s spiritual life. Such an attitude, taken with proper seriousness, might just bring the geulah, one step at a time.

[1] Pesachim 2:6-7

[2] See Terumat HaDeshen 119 and Bach, OC 448, s.v. katav.

[3]See Machatzit HaShekel, O.C. 448:4; Responsa Chatam Sofer, YD 310; Responsa Li-Horot Natan, II, 27

[4] Netiv V, part V, 46a

[5] Orach Chaim  448:5

[6] See, for example, R. Uri Shraga Feivush Toubish, Reponsa Uri Vi-Yish’i, 121.

[7] See, for example, Responsa Shoel U’Meishiv, II, 2:77.

[8] On this distinction, see also R. Ya’akov Ariel, Resp. Bi-Ohalah Shel Torah, I, 59.

[9] Pesachim 21a

[10] Pesachim 10a.

[11] Others who accepted this premise include Ketzot HaChoshen, 194:4; R. Meshulam Igra, Responsa 39:1, and R. Natan Note Kahane, Resp. Divrei Rinanah, 30 (and see the extensive references in the footnotes, # 11, by R. Yitzchak Hershkowitz). See also R. Yitzchak Shmuel Shechter, Responsa Yashiv Yitzchak X, OC 9.

[12] See for example Mekor Chaim 448:9; see the lengthy analysis of Responsa Minchat Yitzchak, VIII:41.

[13] The Kogalglover Rav offers a creative explanation of the Bekhor Shor’s view in his Responsa Eretz Tzvi, I, 84.  

[14] See R. Asher Weiss, Haggadat Minchat Asher p. 280.

[15] See Responsa Li-Horot Natan VI, 25

[16] Pesachim 1a, s.v. u-mah. See Peri Megadim, Petichah to Pesach 1:9.

[17] See R. Yosef Engel, Lekach Tov, 8:1

[18] Mitzvot Aseh #73

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